Opinion No. Oag 45-79, (1979)

68 Op. Att'y Gen. 124

• Court: Wisconsin Attorney General Reports
• Decided: April 24, 1979
• Status: Published

Opinion

WILLIS J. ZICK, Corporation Counsel Waukesha County

You advise that Waukesha County has adopted civil service provisions for deputy sheriffs pursuant to sec. 59.21 (8)(a), Stats., and operates with a civil service commission. You state that Edward J. O'Connor served as a deputy sheriff with civil service status for many years and that he was granted a leave of absence during his first elected term as sheriff as permitted under the county ordinance, but that pursuant to county policy he was not granted a leave of absence during his last terms as elected sheriff. You state that the issue of whether he was on leave of absence by reason of the mandatory provisions of sec.63.065, Stats., is material to a determination of whether he is eligible for certain benefits during retirement and that he is not presently interested in reinstatement to his former position.

You inquire whether sec. 63.065. Stats., is applicable to counties having a population of less than 500,000 which have adopted a civil service program for deputy sheriffs pursuant to sec. 59.21 (8)(a), Stats., which operates under a civil service commission.

I am of the opinion that it is.

Section 59.21 (8)(a), Stats., provides in part:

In counties having a population of less than 500,000, the county board may by ordinance fix the number of deputy sheriffs to be appointed in said county . . . and may further provide by ordinance, that deputy sheriff positions shall be filled by appointment by the sheriff from a list of 3 persons for each position, such list to consist of the 3 candidates who shall receive the highest rating in a competitive examination . . . . Such competitive examinations may be by a county civil service commission or by the department of administration at the option of the county board and it shall so provide by ordinance . . . . If a civil service commission is decided upon for the selection of deputy sheriffs, then ss. 63.01 to 63.17 shall apply so far as consistent with this subsection, except ss. 63.03, 63.04 and 63.15 and except the provision governing minimum compensation of the commissioners.

Section 63.065, Stats., as amended by ch. 271, Laws of 1977, provides in part:

A permanent employe in the classified service of any county having a population of 500,000 or more, who is elected to a county or state office shall be granted a leave of absence without pay from a position for the period of his or her entire service as an elected county or state officer and thereafter shall be entitled to return to the former position or to one with equivalent responsibility and pay in the classified service without loss of seniority or civil service status.

Section 63.065, Stats., was first enacted by ch. 116, Laws of 1963. The legislative history reveals that it was intended to grant rights to civil service employes in populous counties, "Milwaukee County," who were elected to county or state office. At the time it was adopted, sec. 59.21 (8)(a), Stats. (1961), had the same language of exception and inclusion as it does now, to wit: "[T]hen . . . ss. 63.01 to 63.17 shall apply so far as consistent with this subsection, except ss. 63.03, 63.04 and63.15."

Section 63.065, Stats., is incorporated by reference into sec.59.21 (8)(a), Stats., even though it was created after the incorporating language had been passed. Layton School of Art Design v. WERC, 82 Wis.2d 324, 338, 262 N.W.2d 218 (1977); Union Cemeteryv. Milwaukee, 13 Wis.2d 64, 68, 108 N.W.2d 180 (1961).

It is my opinion that the provisions of see. 63.065, Stats., are consistent with those of sec. 59.21 (8), Stats., and are, therefore, applicable to a county with less than 500,000 population which has adopted a civil service program for deputy sheriffs pursuant to sec. 59.21 (8)(a), Stats., and operates under a civil service commission.

I am of the opinion that, where an application for leave is applied for by a deputy who has been elected to a county or state office, leave without pay must be granted and continues for the entire period of his or her service as an elected county or state officer.

BCL:RJV